{"id":11659,"date":"2014-04-01T10:15:28","date_gmt":"2014-04-01T14:15:28","guid":{"rendered":"http:\/\/www.atlantictraining.com\/blog\/?p=11659"},"modified":"2014-04-01T10:15:28","modified_gmt":"2014-04-01T14:15:28","slug":"employee-discipline","status":"publish","type":"post","link":"https:\/\/www.atlantictraining.com\/blog\/employee-discipline\/","title":{"rendered":"Employee discipline: what OSHA has to say"},"content":{"rendered":"

Companies have to enforce their safety rules, and that includes disciplining workers. But OSHA says you can\u2019t retaliate against an employee for reporting an injury \u2013 one that might have occurred because the worker violated a safety rule. With OSHA\u2019s growing emphasis on whistleblowers, how do you balance this?<\/span><\/p>\n

The answer: carefully.<\/p>\n

That\u2019s the message in a recent post<\/a> on the Managing OSHA blog<\/a> from the Arent Fox law firm.<\/p>\n

Mark Dreux and Matt Thome write they have seen retaliation claims by employees \u201cgrow with greater frequency in the past year, and expect them to continue to grow.\u201d<\/p>\n

This is more confirmation than surprise. When OSHA had to cut its budget<\/a> due to sequestration, it found a way to increase its resources for investigating whistleblower cases.<\/p>\n

So, let\u2019s set up an example. Employee Adam is injured at work. His employer\u2019s investigation finds a root cause for the injury was Adam violating a company safety rule.<\/p>\n

The company has a three strikes policy: After a third safety infraction, an employee is fired.<\/p>\n

Adam has violated safety rules previously, so the company fires him. He then goes to OSHA and claims his firing was retaliation for becoming injured at work.<\/p>\n

How can the company defend itself against this claim?<\/p>\n

Here is one of those times when it\u2019s important for safety to work together with HR. And what\u2019s the HR mantra when it comes to disciplining employees? Document, document, document.<\/p>\n

Let\u2019s go back to our example. Hopefully, when Adam had his first two safety strikes, the company documented how it handled those situations.<\/p>\n

A common practice: After the first safety violation, the employee receives a verbal warning. Even though the employee receives the warning verbally, this is documented by safety and HR.<\/p>\n

A second safety violation comes with a written warning, which explicitly spells out that breaking another safety rule within a certain period of time will result in termination.<\/p>\n

Dreux and Thome say it\u2019s important that the documentation \u201cconveys that the contested discipline lacked discriminatory intent.\u201d In other words, the termination had nothing to do with the fact the employee was injured. Instead, it has to do with violation of a safety policy.<\/p>\n

What will OSHA look for if it decides to investigate? According to its own document<\/a> on whistleblower cases, the following will be considered:<\/p>\n